exist. The code has certainly abolished this doctrine and the practice based upon it. Several features of the new procedure are utterly inconsistent with it. In the first place, the general or special denials of the code are not so broad as the general issues of the common law most in use had become; and, as will be particularly shown in the following section, they admit of no evidence not in direct answer to the plaintiff's allegations. In the second place, the verification of pleadings introduced by the codes cuts off all averment of fictitious defences. In the third place, the statute expressly authorizes the defendant to set forth "as many defences as he may have;" and this has been very properly construed as a direct permission, and even requirement, to plead partial as well as complete defences. Notwithstanding this express statutory provision, there has been some conflict of opinion among the courts in respect to the pleading of mitigating facts and circumstances. Certain judges have found it impossible to forget the technical methods of the old procedure, and have seemed determined to treat them as still existing in full force and effect; while others have readily adopted the spirit as well as the letter of the reformed system. I shall therefore postpone the discussion of this particular subject - the pleading of mitigating circumstances—until the sections are reached which treat of the "general denial" and of "new matter."

§ 499.608. Partial Defences should be pleaded as such. While partial defences are to be pleaded, it is well settled that they must be pleaded as such. If a defence is set up as an answer to the whole cause of action, while it is in fact only a partial one, and even though it would be admissible as such if properly stated on the record, it will be bad on demurrer: the facts alleged will not constitute a "defence;" which word, when thus used alone, imports a complete defence.2 The practical result of this doctrine is, simply, that the pleader must be careful to designate the defence as partial; he must not content himself with simply averring the facts as in an ordinary case, as if they constituted a full answer to the cause of action, but he must expressly state that the defence is partial. In the absence

1 [Coyle v. Ward (1901), 167 N. Y. Saving Co. v. Harris (1895), 142 Ind. 226, 240, 60 N. E. 596.] 40 N. E. 1072. See also Bowman r. Fur Mfg. Co. (1895), 96 Ia. 188, 64 N. W. 775, construing the Code, § 2682.]

2 [Breyfogle v. Stotsenburg (1897), 148 Ind. 552, 47 N. E. 1057; United States

of such statement, it will be assumed that he intended the defence to be complete.1

This rule seems to

§ 500. * 609. Criticism of Foregoing Rule. be well established, but it is certainly one which may often work injustice. It is a remnant of the old system, and does not harmonize with the central design of the new, which is to elicit the truth and to decide controversies upon all the actual facts. When the defendant has set up a defence as if to the entire cause of action, which is, however, only partial, and when, if described as partial, it would have been perfectly regular, the plaintiff could not be prejudiced by allowing it to stand for what it is worth as a partial defence. He knows that it is, in fact, partial, for the very objection assumes that knowledge. If accurately named, he would be obliged to meet and answer it on the trial; and he would only be compelled to make the same preparation if it were suffered to remain on the record, and to fulfil its intended purpose. In short, the plaintiff could not be misled by such a proceeding; and to strike out the pleading altogether would, if its allegations were true, be depriving the defendant of certain relief to which he was in justice entitled. I repeat, the rule is nothing but a remnant of the ancient technicality, the old devo

1 Fitzsimmons v. City F. Ins. Co. of New Haven, 18 Wis. 234; Traster v. Snelson's Adm., 29 Ind. 96; Sayres v. Linkhart, 25 Ind. 145; Conger v. Parker, 29 Ind. 380; Stone v. Lewman, 28 Ind. 97; Sanders v. Sanders, 39 Ind. 207; Yancy v. Teter, 39 Ind. 305; Bouslog v. Garrett, 39 Ind. 338; Summers v. Vaughan, 35 Ind. 323, and cases cited. In Fitzsimmons v. City F. Ins. Co., supra, it was said by Cole J., at p. 240: "The appellant contends that, if this answer is not good as a total defence, it is good as a partial defence to the action. The difficulty with this position is that this answer professes and assumes to answer the entire cause of action. It is not relied on as a partial, but as a complete defence, and we have seen that for this purpose it is insufficient. Now, under the old system, when a plea professed in its commencement to answer the whole cause of action, and afterwards answered only a part, the whole plea was bad. This rule was elementary; and, upon general principles, we do not see why it is not applicable to pleadings under

the code. If a party has a partial defence to an action, he should set it up, and rely on it as such, and not as a complete and entire defence." See also, to the same effect, Adkins v. Adkins, 48 Ind. 12, 17; Allen v. Randolph, 48 Ind. 496; Alvord v. Essner, 45 Ind. 156; Curran v. Curran, 40 Ind. 473; Jackson v. Fosbender, 45 Ind. 305; Beeson v. Howard, 44 Ind. 413, 416; Gulick v. Connely, 42 Ind. 134, 136. But this rule does not extend to an answer simply pleading a set-off less than the plaintiff's demand, since a set-off is not strictly a defence. Mullendore v. Scott, 45 Ind. 113; Dodge v. Dunham, 41 Ind. 186. See also, as examples of the rule stated in the text, Jones v. Frost, 51 Ind. 69; McMahan v. Spinning, 51 id. 187; Keller v. Boatman, 49 id. 104; Putnam v. Tennyson, 50 id. 456; Peet v. O'Brien, 5 Neb. 360; Peck v. Parchin, 52 Iowa, 46; McDaniel v. Pressler, 3 Wash. 636; Thompson v. Halbert, 109 N. Y. 329; Shortle v. Terre Haute & I. Ry. Co., 131 Ind. 338; Indianapolis, E. R. & S. W. R. Co. v. Hyde, 122 Ind. 188.

tion to external forms of logical precision which marked the common-law procedure, and which made it anything but a practical means of eliciting and applying the truth in judicial controversies.

SECTION THIRD.

THE DEFENCE OF DENIAL.

§ 501. 610. Species of Denial. The various species of denial provided for in the codes are "general" or "specific," and positive or a denial of "knowledge or information of the matter sufficient to form a belief." In most of the codes, it is expressly permitted that the denials may be either "general" or "specific.' In a few, no provision is in terms made for the general denial, and only those that are "specific" or "special" are mentioned. In one or two, the language simply speaks of “a denial.”1 According to a large majority of the codes, the denial, whether general or specific, may be either positive, or a denial of "knowledge or information thereof sufficient to form a belief;" but in a very few of them the latter form is omitted. The defendant is universally allowed to deny only such allegations of the complaint or petition as he controverts, and this permission is usually given whether he employs the "general" or the "specific" form of denial; but in the latest revision of the Iowa Code [1897], it is said with more accuracy that the general denial must be "of each allegation of the petition," while the specific denial is to be "of each allegation of the petition controverted" by him.

1 In Minnesota, although the code is silent respecting the general denial, and speaks only of "a denial of each allegation," it is settled by repeated decisions that the ordinary form of the general denial is a compliance with the statute, and is entirely proper: hence the general denial is in constant use in that State; and such, I believe, is the practice in most of the States. Leyde v. Martin, 16 Minn. 38; Becker v. Sweetzer, 15 Minn. 427, 434; Kingsley v. Gilman, 12 Minn. 515, 517; Bond v. Corbet, 2 Minn. 248; Caldwell v.. Bruggerman, 4 Minn. 270; Starbuck v. Dunklee, 10 Minn. 173; Montour v. Purdy, 11 Minn. 401. On the other hand, in North Carolina, notwithstanding that the language of the code, which is exactly

the same as that in New York, expressly authorizes the general denial, the general denial in the ordinary form, as used in other States, is held to be a nullity, and an answer containing it will be struck out as sham: an altogether different construction is placed upon the language of the statute from that given in any other State. Schehan v. Malone, 71 N. C. 440, 443; Flack v. Dawson, 69 N. C. 42; Woody v. Jordan, 69 N. C. 189, 195. In California and a few other States, the general denial is not permitted when the complaint or petition is verified; in such a case, therefore, a general denial raises no issue, and will be struck out on motion. People v. Hagar, 52 Cal. 171.

§ 502. * 611. Outline of Proposed Treatment. In actual practice, the "general denial," wherever permitted, is only employed when the defendant desires to put the whole complaint or petition in issue, and "specific" denials when he wishes to take issue merely with certain allegations thereof. It is very plain, that in the former case the "general denial," in its brief and comprehensive form, is as efficacious as a particular traverse of each averment separately. Nothing is gained by filling the record with specific denials, when one sweeping denial of the entire pleading will answer the same purpose and admit the same proofs. I shall distribute the subject-matter of this section under the following heads, assuming in the first instance, for convenience of the discussion, that the denial is "positive:" I. The form of the "general denial," and of the "specific denials; " II. The nature of "specific denials," and what issues they raise; III. Allegations admitted by omitting to deny; IV. Denials in the form of negatives pregnant; V. Argumentative denials, and specific defences equivalent to the general denial; VI. General denial of all allegations not otherwise admitted or explained; VII. What allegations must be denied, issuable facts, and not conclusions of law; VIII. Denials of information or belief, when proper, and their effect; IX. What can be proved under denials either general or specific; X. Some special statutory rules in reference to denials.

§ 503. *612. Same Subject. The discussion which follows, and the practical rules deduced therefrom, are based in the first place upon the assumption that the denials, whether general or specific, are positive in their nature. The conclusions which are reached apply, however, with equal force and effect, to those cases in which the denials are of information or belief. The only object of the latter form is, that the defendant may be enabled to put the plaintiff's allegations in issue when he is obliged to verify his answer, and cannot do so from his own personal knowledge: the effect and efficacy of the traverse are not diminished nor in any manner altered by the use of this method when it is properly employed.

§ 504. * 613. External Form of Denials, General and Specific. Under the common-law system there were several distinct species of the "general issue" and of particular traverses, each appropriate to and only to be used in some one of the different forms

of action, or to put in issue certain classes of allegations; but all these have been abolished in the reformed procedure. One form of the general denial is sufficient for all actions and for all issues; and although it may undergo slight and unimportant variations, it is substantially the same in all the States, and in the hands of all members of the bar. The material averment, modified doubtless in its phraseology, is that the defendant "denies each and every allegation of the complaint or petition. The form in common use is, "The defendant, for answer to the complaint herein, denies each and every allegation thereof." It is of course impossible to describe the forms of any specific denial. From its very name and nature, it is the special traverse of some particular averment found in the plaintiff's pleading, and must therefore depend to a very great degree upon the matter and shape of the statement which is thus controverted. How far it should merely follow and negative the exact language of the allegation to which it is directed, will be considered under the subsequent head of the section which treats of denials in the form of a negative pregnant.2 It will there be shown that such an

1 This form is slightly varied in the standard text-books upon pleading, and in the actual practice of the bar: but this is entirely sufficient; any additional matter would be superfluous. Examples of irregular forms held to be sufficient, Moen v. Eldred, 22 Minn. 538; Jones v. Ludlum, 74 N. Y. 61; Brothington v. Downey, 21 Hun, 436; Hoffman v. Eppers, 41 Wis. 251; but an answer "that no allegation of the complaint is true," is wholly nugatory, - raises no

issue.

[The following variations have been held sufficient. A denial of "each and every allegation of new matter:" City of Crete v. Hendricks (1902), Neb., 90 N. W. 215; a denial of "all the allegations of each paragraph of both counts of the petition:" Ocean Steamship Co. v. Anderson (1900), 112 Ga. 835, 38 S. E. 102; an answer that defendant "states and alleges that he denies each and every allega tion of the petition:" Reiss v. Argubright (1902), Neb., 92 N. W. 988; an answer that defendants "say that they deny each and every allegation:" Town of Denver v. Spokane Falls (1893), 7 Wash. 226, 34 Pac. 926.

In State ex rel. v. Butte Water Co. (1896), 18 Mont. 199, 44 Pac. 966, the court said: We shall follow the California cases, and hold that the statutory form of denial was the only one to be sustained." To the same effect see Rossiter v. Loeber (1896), 18 Mont. 372, 45 Pac. 560.

The alleged insufficiency of a general denial cannot be raised for the first time on appeal: King v. Pony Gold Min. Co. (1903), 28 Mont. 74, 72 Pac. 309.

A general denial is not rendered bad by immaterial matter alleged in connection therewith: Ralya v. Atkins (1901), 157 Ind. 331, 61 N. E. 726.]

2 ["A denial of the very words of the allegations of the petition, without denying their substance and effect, tenders no issue: " Knight . Denman (1902), 64 Neb. 814, 90 N. W. 863. It is not necessary that a traverse should be expressed in negative words: Stetson v. Briggs (1896), 114 Cal. 511, 46 Pac. 603; Glencross v. Evans (1894), Ariz., 36 Pac. 212. See also State ex rel. v. Adams (1901), 161 Mo. 349, 61 S. W. 894.

Where suit is brought on a note payable conditionally, and the defendant denies